Trial Court Acted Within Its Discretion To Allow Evidence of Prior Felony Conviction For Impeachment Under Rule 609 But Not Allow Evidence of Predicate Felony on Which Conviction Was Based
SCHMUDE v. TRICAM INDUSTRIES, INC. (February 17, 2009)
Kevin Schmude, a 350-pound man, was working on a construction project. He climbed an 8-foot ladder manufactured by Tricam Industries, Inc. (Tricam) to in order to inspect electrical connections in the space above a ceiling. He and the ladder collapsed onto the floor. One of the rivets designed to secure the rear leg was found on the floor. The leg itself had separated from the ladder. A jury found for Schmude and awarded $677,000 in damages. Tricam appeals.
In their opinion, Judges Posner, Ripple and Rovner affirmed. The Court first summarily rejected Tricam’s arguments concerning a minor discrepancy between plaintiff’s expert’s report and testimony and the expert’s demonstration using the ladder. The Court gave greater consideration to Tricam’s objection to the limitations the trial court put on its ability to impeach Schmude with evidence of a prior conviction. Schmude had been convicted in 1995 of the sale, by a felon, of firearms without a license. F.R.E. 609(b) allows evidence of the conviction of a felony more than ten years old for impeachment purposes only when the probative value outweighs the possible prejudice. The trial court ruled that Tricam could impeach Schmude with evidence of the conviction, but would not allow evidence that the felony was actually predicated on yet another, earlier felony. The Court appreciated the significance of the issue – Schmude’s testimony was the only direct evidence of the cause of the fall and the extent of his pain. The Court also appreciated the trial court’s dilemma – without approaching the issue the way he did, the jury would either hear evidence that Schmude had been convicted of two felonies or would hear no evidence of a conviction. The Court concluded that the trial judge made a reasonable choice under the circumstances. Finally, the Court also upheld the trial court’s refusal to allow Tricam to put on certain evidence of Schmude’s anti-social personality. The Court agreed that the evidence in question had no probative value and would have been extremely prejudicial to Schmude.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select